Map of North and South Kivu

Acronyms

Convention on the Elimination
of All Forms of Discrimination against Women

CNDP

National Congress for the
Defense of the People

CPVS

Commission
provinciale de lutte contre les violences sexuelles

DRC

Democratic Republic of Congo

EU

European Union

EUPOL

EU Police Mission in the
Democratic Republic of Congo

EUSEC

EU Security Sector Reform
Mission in the Democratic Republic of Congo

FAC

Forces Armées Congolaises

FARDC

Forces Armées de la République
Démocratique du Congo

FC

Francs congolais

FDLR

Democratic Forces for the
Liberation of Rwanda

FIDH

Fédération
internationale des droits de l'homme

ICC

International Criminal Court

ICCPR

International Covenant On Civil
and Political Rights

ICRC

International Committee for the
Red Cross

ICTJ

International Center for
Transitional Justice

IFRI

Institut français
des relations internationales

IOM

International Organization for
Migration

IRC

International Rescue Committee

MONUC

UN Mission in the Democratic Republic
of Congo

NGO

Nongovernmental organization

OCHA

Office for the Coordination of
Humanitarian Affairs

OHCHR

Office of the High Commissioner
for Human Rights

RCD-Goma

Congolese Rally for
Democracy-Goma

REJUSCO

Program for the Restoration of
Justice in Eastern Congo

S2

Intelligence officer in the
FARDC with the rank of investigating judicial officer (officier de police
judiciaire)

SSR

Security Sector Reform

UNDP

United Nations Development Programme

UNFPA

United Nations Population Fund

UNHRO

United Nations Human Rights
Office in the Democratic Republic of Congo

UNHCR

United Nations High
Commissioner for Refugees

UNICEF

United Nations Children's Fund

US

United States

Summary

I was just coming back from the river to fetch water....
Two soldiers came up to me and told me that if I refuse to sleep with them,
they will kill me. They beat me and ripped my clothes. One of the soldiers
raped me... My parents spoke to a commander and he said that his soldiers do
not rape, and that I am lying. I recognized the two soldiers, and I know that
one of them is called Edouard.

-15-year-old girl, Minova, South Kivu, March 2009

We were three young women and we were on our way to
Cirunga.... They [the soldiers] raped us and dragged us to their camp which was
not far away. I stayed there for one month, under constant supervision....
There was no conversation between us, he had sex with me at any moment, when he
felt like it, and with a lot of violence. I spent my days crying. I begged God
to free me from this hell.

- 23-year-old woman, Kabare, South Kivu, April 2009

One evening some soldiers came to attack us. This was in
February or March 2008. They said they would kill our father. The soldiers were
angry with my dad because he had stopped them from cutting down an avocado tree
[as firewood].... We stayed in the living room. Two soldiers raped my bigger
sister. When he had finished, he injured her with a knife at the eye, and he
did the same with my brother.... Then they left. My mother brews beer and they
took the money she had earned from that.

- 13-year-old girl, Kabare, South Kivu, April 2009

In the Democratic Republic of Congo, tens of thousands of
women and girls have suffered horrific acts of sexual violence. The government
army, the Forces Armées de la République Démocratique du Congo (FARDC),
is one of the main perpetrators, contributing to the current climate of
insecurity and impunity in eastern Congo. FARDC soldiers have committed gang
rapes, rapes leading to injury and death, and abductions of girls and women.
Their crimes are serious violations of international humanitarian law.
Commanders have frequently failed to stop sexual violence and may themselves be
guilty of war crimes or crimes against humanity as a consequence. Although
other armed groups also commit brutal acts of sexual violence against women and
girls, the sheer size of the Congolese army and its deployment throughout the
country make it the single largest group of perpetrators.

The destructive long-term physical, psychological, and
social effects of sexual violence on the victims cannot be underestimated. The
situation is particularly bad for girls, who are at risk of serious injuries
after rape, and whose health is at risk if they get pregnant. Their future is
often compromised as they have difficulty finding a partner, drop out of
school, are rejected by their own family, or have to raise a child born from
rape while still being a child themselves.

This report looks at abuses of sexual violence committed by
the FARDC, efforts to stop it, and why such efforts have failed so far. More
specifically, the report looks at the 14th brigade as an example of
the wider problem of impunity. Since its creation in 2006, this brigade has
committed many crimes of sexual violence in different areas of North and South
Kivu in eastern Congo. It has also been responsible for abductions, killings,
torture, looting and extortion. Without sufficient food or pay, soldiers have
attacked the civilian population to loot and extort goods.

Abuses against civilians peaked when the brigade was
cantoned with almost no provisions in Kabare, South Kivu between January and
August 2008. Officially, since March 2009 the 14th brigade has
ceased to exist when it was amalgamated with combatants from other armed groups
into two new brigades-a process that saw former armed opposition units
assimilated into the FARDC without any vetting and only limited training. The
command structures of the 14th brigade provide the backbone of some
units, and many Congolese, including soldiers, still refer to former 14th
brigade troops as the 14th brigade. Sexual violence by them has
continued to the present. Many of the soldiers from newly integrated armed
opposition groups have also committed acts of sexual violence.

Despite protests by victims, residents, NGOs, and even
politicians, Congolese military courts have done little to bring to justice
those responsible. Commanders have protected their soldiers. The army hierarchy
has even left it unclear under whose command the 14th brigade is.

As the example of the 14th brigade illustrates,
sexual violence by the army continues despite serious efforts by the
government, the international community, and Congolese civil society to fight
mass sexual violence. In November 2007, President Kabila's wife, Olive Lemba
Kabila, opened a country-wide campaign supported by UN agencies to combat
sexual violence, aiming to raise awareness and push for an end to impunity. The
first lady's involvement gave the issue of sexual violence a higher profile. In
2006, a landmark sexual violence law came into force, providing a much improved
legal framework to try those responsible, and in late 2008 the International
Criminal Court launched an investigation into crimes in its jurisdiction in the
Kivus, including sexual violence. There are also now many important, if still
insufficient, programs providing medical, psychological, economic, and legal
support to survivors.

Less money has been allocated to prevention and protection;
according to a MONUC estimate, only 11 percent of donor funds for sexual
violence have been allocated for the physical protection of women and girls. As
part of those efforts, the government, international donors, and NGOs have
taken specific steps to deal with the army's poor human rights record,
sometimes as part of broader security sector reform. Such measures include
training on international humanitarian law and Congolese law; building the
capacity of the military justice system and the police; improving access to
justice; and ensuring regular payment of army soldiers. As a result of these
efforts, some progress has been made. The military justice system is better
equipped to deal with sexual violence than a few years ago, and has made some
limited progress in bringing ordinary soldiers to account for their sexual
crimes.

Despite these important advances, the military justice
system remains a weak institution. To date, only a small fraction of the total
number of acts of sexual violence committed by soldiers has been prosecuted.
Access to justice remains difficult. For example, during 2008, 27 soldiers were
convicted of crimes of sexual violence in North and South Kivu provinces.
During the same year, the UN registered 7,703 new cases of sexual violence (by
army soldiers and other perpetrators) in North and South Kivu.

Moreover, almost all military prosecutions of sexual
violence to date have focused on lower-ranking soldiers. No senior military
figure has been prosecuted for sexual crimes; the criminal responsibility of
senior officials, including their command responsibility, is rarely the subject
of investigations by military prosecutors. The most senior officer convicted of
crimes of sexual violence in the Kivus has been a captain-no major, lieutenant
colonel, colonel, or general has been prosecuted. Military commanders continue
to be powerful figures who are treated as untouchable by political and military
leaders; brigade commanders in particular are often given free reign.
Commanders also continue to protect their soldiers in many instances,
obstructing the course of justice. This undermines ongoing efforts to render
justice even for crimes committed by lower-ranking soldiers.

The Congolese government and its international partners
should intensify efforts to prevent and punish sexual violence crimes by army
soldiers. They should take measures to build the capacity of the weak military
justice system; professionalize the army, including by improving living
conditions of soldiers; and introduce a vetting mechanism to remove officers
with responsibility for past crimes from the army.

But initiatives to strengthen the military justice system
and to improve command and control within the FARDC will take time to implement
and will do little to address the immediate problem of impunity, especially of
more senior officers, which is fundamental to both justice for victims and the
prevention of further crimes. Since the military justice system remains a weak
institution, the government should consider establishing a mixed chamber,
composed of international and Congolese judges and prosecutors. This mixed
chamber would prosecute high-ranking officers, armed group leaders, and
civilian leaders responsible for war crimes and crimes against humanity,
including sexual crimes, beyond the few individuals who will be tried by the
International Criminal Court (ICC).

Recommendations

To the Congolese Government:

Consider establishing a special chamber with Congolese and
international judges and prosecutors within the Congolese justice system.
The chamber's mandate should be to investigate serious violations of
international humanitarian law, including sexual violence, and should
include the capacity to investigate and prosecute senior military and
civilian officials who are responsible for or complicit in crimes.

Professionalize the army, the Forces Armées de la
République Démocratique du Congo (FARDC), and end sexual violence by
its soldiers:

Enforce compliance with international
humanitarian law among all members of the armed forces;

Ensure that there is a clear chain of
command, and that brigades are controlled effectively by a superior hierarchy;

Investigate and prosecute crimes of sexual
violence, and ensure that army commanders cooperate with the judiciary;

Ensure that all soldiers of all
ranks-including those recently integrated into the army-receive regular,
mandatory training on civilian protection, including protection of women and
girls. Initiate a comprehensive, formal evaluation of the impact of training
and modify it accordingly;

Create the position of gender advisor in the
FARDC for awareness-raising and advocacy regarding sexual violence, including
violence against soldiers' wives and daughters, to be filled by a senior
officer and located within the command structure;

Ensure soldiers receive a regular, adequate
salary and have access to medical and psychological care; and

Create military barracks that provide a base
for soldiers and their families.

Take measures to strengthen the military justice system's
response to sexual violence:

Create specialized units on sexual violence
within each military prosecutor's office and tribunal to facilitate the
investigation and prosecution of these crimes; consider associating members of
civilian judiciary and international experts in an advisory role;

Strengthen expertise of military prosecutors
and judges on investigations that link senior officials to crimes committed on
the ground, including their command responsibility;

Appoint more senior military officers to the
military bench in eastern Congo, as Congolese law mandates that judges in
military courts must have a similar or higher rank than the defendant;

Inform victims and their families about
their rights and judicial proceedings, offer counseling to adult and child
victims through trained staff, and avoid re-traumatizing or stigmatizing
victims during the judicial process;

Ensure that all victims whose cases are
investigated or prosecuted receive adequate medical and psycho-social support;

Improve access to justice for victims, in
line with UN recommendations, including by making the medical certificate free
of charge and supporting legal assistance programs;

Increase the number of female judicial
staff;

Ensure compensation payments are paid,
possibly through the creation of a compensation fund;

Ensure that trials conform to international
standards on due process;

Ensure the safety of victims, witnesses, and
human rights defenders working on FARDC crimes; and

Allow the military justice system to
function independently of the army.

To the National Assembly:

Adopt the International Criminal Court (ICC) implementing
law into Congolese domestic legislation, which would, among other things,
shift jurisdiction over war crimes and crimes against humanity to the
civilian courts.

To the UN Mission in Congo (MONUC):

Organize MONUC troops so they can react
rapidly and with adequate logistical support in order to effectively protect
women and girls against acts of sexual violence;

Avoid cooperating with Congolese army units
and military commanders that have been implicated in serious violations of
international humanitarian law;and

Make efforts to increase the number of
female peacekeepers and to create a female unit in the UN police, with
particular skills in addressing sexual violence.

To the UN Mission in Congo (MONUC) and other United Nations agencies, the
European Union (EU), the United States (US), and other International Donors:

Support efforts to establish a judicial mechanism-such as
a mixed chamber-that prosecutes war crimes and crimes against humanity by
civilian and military leaders who will not be tried by the ICC;

Urge the Congolese government to implement the above
reforms, and provide funding and technical assistance for their
implementation;

Introduce benchmarks for funding to the justice sector,
such as a number of prosecutions of high-ranking military officials for
their command responsibility in sexual crimes, in accordance with
international fair trial standards, or specific steps towards the creation
of a mixed chamber;

Include an explicit focus on sexual violence prevention in
security sector reform programs; and

Take measures to implement UN Security Council Resolution
1820 on sexual violence, including by improving technical expertise on
sexual violence crimes in all UN member states, with a view to assisting
countries affected by sexual violence in armed conflict.

To the UN Security Council:

Request the Secretary-General
to publicly list parties to armed conflict that are responsible for acts of
sexual violence in violation of international law in the annexes to his reports
on children and armed conflict;

Extend the monitoring and reporting
mechanism on children and armed conflict to countries where sexual violence by
parties to armed conflict occurs;

Request the Security Council
working group on children and armed conflict to refer violations involving
sexual violence against children in Congo to the sanctions committee for Congo;

Adopt targeted measures,
including arms embargoes, against parties to armed conflict that fail to
address acts of sexual violence against women or children committed by their
members; and apply individual measures, including travel bans, asset freezes,
and exclusion from governance structures against individual commanders
responsible for sexual violence;

Take measures to implement Resolution 1820
on sexual violence in armed conflict globally and in Congo, including by taking
action to end impunity for sexual violence and by strengthening the capacity of
peacekeeping personnel to protect women and children against sexual violence;
and

Request the Secretary-General to establish and hire for
the position of Special Envoy or Representative on Women, Peace, and
Security, at a level that signals accountability and resource-commitment,
to coordinate and drive the full implementation of resolutions 1325 and
1820 within the UN system.

To the International Criminal Court (ICC):

Enhance the capacity of national courts to prosecute
serious crimes that the ICC will not address, including sharing expertise
on legal issues related to the investigation and prosecution of
international crimes, witness protection, and the fair trial rights of
defendants.

Methodology

Human Rights Watch has carried
out research on sexual violence against women and girls in Congo since 2000,
and has interviewed hundreds of victims of sexual violence. Sexual violence is
an act of a sexual nature by force, or by threat of force or coercion. Rape is
a form of sexual violence during which the body of a person is invaded,
resulting in penetration, however slight, of any part of the body of the
victim, with a sexual organ, or of the anal or genital opening of the victim
with any object or other part of the body.[1]

Research for this report was carried out between January and
April 2009 in North and South Kivu, Congo. We interviewed victims and witnesses
of sexual violence, relatives of victims, representatives of churches and NGOs,
staff of international agencies, and government representatives. We also
interviewed military officials, military prosecutors, and military judges, as
well as the 14th brigade's former commander and 16 members of the 14th
brigade itself (some had left the brigade at the time of the interview).[2]
Prior to the visit, we informed military authorities of our research.

Researchers took great care to ensure that victims of sexual
violence were interviewed in safe conditions and were comfortable speaking
about their experiences.[3] We chose
not to interview children under the age of 12 because we determined that it was
possible to show the 14th brigade's responsibility for widespread
sexual violence without undertaking such sensitive interviews and their
associated risks. The interviews took place in private, with only one trusted
translator present. In total we interviewed 31 women and girls who had been
raped by FARDC soldiers, as well as five relatives of victims.We also received testimony from victims who
were unable to identify the attackers at all, and did not use any of those
testimonies.

In 14 cases, interview partners identified the rapists with
certainty as soldiers of the 14th brigade. As several instances
involved more than one victim, we documented 19 cases of sexual violence by
members of the 14th brigade through victims and relatives. Brigades
have epaulettes of different colors, and the 14th brigade epaulettes
are purple; sometimes, however, brigades take the epaulettes off, possibly to
avoid identification. We attributed cases to the 14th brigade when
victims saw the purple epaulette or when the attackers were otherwise clearly
identified as members of the 14th brigade, for example through their
presence at a military camp of the 14th brigade. We also received
information about seven cases of rape by 14th brigade soldiers
through judicial authorities and members of the 14th brigade,
bringing the total number of documented cases of sexual violence committed by
members of the 14th brigade to 26. Military officials, members of
the 14th brigade, justice officials, and NGOs, also provided
background information on sexual violence by the 14th brigade.

In 14 other cases, victims described acts of sexual violence
that are likely to have been committed by the 14th brigade, but the
victims were unable to identify the soldiers' brigade with certainty. These
cases are not included in the 26 documented cases mentioned above. In one
additional case, we received testimony about a rape committed by 14th
brigade soldiers who might have been deserters.

I. Sexual Violence in Congo

"The Worst Place" to Be a Woman or a Child

Tens of thousands of women and girls in Congo have become
victims of sexual violence during the past 15 years. The United Nations
Population Fund (UNFPA), the agency coordinating work on sexual violence in
Congo, reported that 15,996 new cases of sexual violence were registered in
2008 throughout the country. In the eastern province of North Kivu alone, there
were 4,820 new cases.[4] UNFPA
also reported that more than 65 percent of victims of sexual violence during
the same period were children, the majority adolescent girls.[5]
An estimated ten percent of victims are children less than ten years old.[6]

However, official statistics are only estimates and the data
collected by UNFPA is fragmented and fails to paint an accurate picture. It is
likely that it represents only a small percentage of the total reported cases
of sexual violence.[7] The
statistics are based on information from the judiciary and from agencies
providing services to victims, such as medical or legal assistance, and
sometimes victims who obtain support from multiple agencies may be counted
twice.[8] Victims
who are unable-or too scared or ashamed-to seek assistance are not likely to be
counted. According to one estimate, less than 50 percent of women who are raped
are able to access health centers.[9]

Nevertheless, there are some indisputable facts: brutal acts
of sexual violence continue on a widespread basis throughout Congo and many of
the victims are girls under the age of 18. Humanitarian workers and other
observers have in recent years labeled Congo as "the worst place to be a child"
or "the worst place on earth to be a woman."[10]

Congo has been wracked by war over the past 15 years. The
first war from 1996 to 1997 ousted long-time ruler, Mobutu Sese Seko, and
brought to power Laurent-Désiré Kabila, a rebel leader supported by Rwanda and
Uganda. The second war from 1998 to 2003 started when President Kabila broke
his alliance with his former backers, and Rwanda and Uganda invaded the east of
the country. The war became one of the deadliest in the world resulting in the
deaths of an estimated 5.4 million people.[11] Sexual
violence was widespread and sometimes systematic, a weapon of war used by all
sides to deliberately terrorize civilians, to exert control over them, or to
punish them for perceived collaboration with the enemy. Armed groups also
abducted women and girls and used them as sexual slaves.[12]Many of the crimes committed amounted to war
crimes or even crimes against humanity. Women said the war was being fought "on
their bodies."[13]

Sexual violence continued in Congo throughout the peace
process and the national elections in 2006. In eastern Congo, new armed groups
were created and violence, including rape, continued. As fighting intensified
in North Kivu in 2008, so did the cases of sexual violence.

In recent years, acts of sexual violence by civilians have
also notably increased. This has been attributed to an increase in demobilized
combatants who have reintegrated into society with minimal rehabilitation
measures, and to the brutalization of society that eroded previous protective
social norms.[14]

The medical, psychological, and social impact of sexual
violence is disastrous. Victims may suffer deadly injuries due to the rape, in
particular when they are very young, when they are gang raped, raped with great
violence, or have objects inserted into their vaginas. Many survivors suffer
permanent damage to their genitals and develop fistulas, resulting in chronic
incontinence.[15] HIV and
other sexually transmitted infections are also frequently transmitted through
rape. Health consequences are particularly serious for girls. Girls often
suffer more serious injuries to their genitals than adult women. When girls
become pregnant, they sometimes suffer from further health problems during
pregnancy and childbirth, such as fistulas.

Victims are not only traumatized by sexual violence, but
also by the negative attitude of their communities towards them. This affects
girls-who are usually dependent on a caregiver-particularly. Families sometimes
reject their own daughters after rape. When girls are rejected by their
families and leave their home, they become vulnerable to further abuse. Girls
are also often rejected by their fiancés and have difficulties finding a
husband. The situation is particularly difficult for girls who had babies after
the rape, and whose story is often known to the community. These girls have the
challenging task of raising a child born from rape while still being a child
themselves. Many girls also drop out of school after rape, due to ill-health,
trauma, displacement, or stigma. Psychosocial support for girls who have
experienced sexual violence requires special expertise, of which there is
little available in war-torn Congo.[16]

International Law

Congo is bound by international
humanitarian law ("the laws of war") and international human rights law.Both bodies of law prohibit acts of sexual
violence. International humanitarian law, largely derived from the four Geneva
Conventions and their protocols, sets out protections for civilians and other
non-combatants during both international and internal armed conflicts.[17]
It implicitly and explicitly prohibits both states and non-state armed groups
from committing rape and other forms of sexual violence.[18]

When crimes of sexual violence
are committed as part of armed conflict, they can be prosecuted as war crimes.
States have an obligation to investigate alleged war crimes committed by their
nationals, including members of the armed forces, and prosecute those
responsible.[19]
Non-state armed groups also have an obligation to prevent war crimes and should
investigate and appropriately punish perpetrators.[20]
Acts of sexual violence committed as part of a widespread or systematic attack
against civilians can be classified as crimes against humanity and prosecuted
as such. The Rome Statute of the International Criminal Court (ICC), to which
Congo is a party, specifies that acts of rape, sexual slavery, enforced
prostitution, forced pregnancy, enforced sterilization, or any other form of
sexual violence of comparable gravity can constitute war crimes or crimes
against humanity.[21]

Aside from their direct criminal responsibility for crimes
committed on the ground (for instance, by issuing orders that are executed by
subordinates), commanders or other superiors may be guilty for failing to
prevent or punish crimes committed by their subordinates. Command
responsibility is an established principle of customary international
humanitarian law and has been incorporated into the Rome Statute.[22]

International human rights law also contains protections
from rape and other forms of sexual abuse through its prohibitions on torture
and other ill-treatment, slavery, forced prostitution, and discrimination based
on sex.[23] The
Convention on the Rights of the Child and the African Charter on the Rights and
Welfare of the Child contain additional protections for children.[24]

International human rights law also enshrines the right to
an effective remedy, which obligates the state to prevent, investigate, and
punish serious human rights violations.[25]States must also
provide reparations to victims of human rights violations, such as compensation
for damages.[26]The UN has reaffirmed these principles
specifically in relation to eliminating violence against women.[27]

Congolese Law

In addition to its obligations under international law,
Congo has a duty under its own laws to prevent and punish acts of sexual
violence.

In 2006, Congo's parliament passed a new law on sexual
violence. For the first time, the law specifically criminalizes acts such as
the insertion of an object into a women's vagina, sexual mutilation, and sexual
slavery. It defines any sexual relation with a minor as statutory rape.
Penalties for rape range from five to twenty years, but are doubled under
certain conditions, for example when committed by a public official, by several
persons together, with use or threat of a weapon, or in situations of
captivity.[28] A
separate law on criminal procedure specifies that victims have a right to be
seen by a doctor and psychologist, that the duration of judicial proceedings
must not exceed three months, and that the security and psychological
well-being of victims and witnesses must be guaranteed.[29]
Congo's new law on child protection contains further protections for children
against sexual crimes.[30] These laws
are applied by civilian and military jurisdictions.

Congo's military justice system, governed by the Military
Justice Code and the Military Penal Code, has exclusive jurisdiction over
members of the army and the police, as well as combatants of armed groups and
civilians who commit crimes against the army. It stipulates that judges must
have a similar or higher rank than the defendants. The Military Penal Code
defines war crimes and crimes against humanity-including sexual crimes-but it
is less detailed and different from the Rome Statute. All violations of laws
occurring during war, and not justified by the laws or customs of war, are
defined as war crimes.[31] When
committed as part of a widespread or systematic attack on the civilian
population or the country, rape, sexual slavery, forced prostitution, forced
pregnancy, forced sterilization, and other forms of sexual violence are defined
as crimes against humanity.[32] The law
stipulates that superiors may be prosecuted as accomplices when they have
tolerated the actions of their inferiors.[33]

Since 2003, a bill for implementing the Rome Statute into
Congolese law has been pending in parliament. The bill codifies crimes against
humanity and war crimes, including sexual crimes, and expands the jurisdiction
of the civilian judiciary to include war crimes and crimes against humanity
committed by members of the armed forces. Its adoption would incorporate
international legal standards on the most serious crimes into Congolese law and
shift the responsibility for prosecuting such crimes to civilian courts away
from the military jurisdiction.

II. Sexual Violence by
the Congolese Army

The FARDC: An Army of Former Enemies

The Congolese national army, the FARDC, was formed after the
installation of the transitional government in June 2003. It brought together
soldiers from all of the main rebel groups as well as the former government
army into a new force with officer and command positions divided up between
them. In order to break former chains of command and enhance the integration of
former enemy combatants into new units, the transitional government pursued a
policy of brassage (mixing up) in which new brigades were formed of
soldiers from each of the main groups, who would then together undertake three
months of basic training and instruction at brassage centers across the
country.[34] It was
a huge logistical exercise due to be completed before national elections in
2006, but carried on even afterward. South Africa, the Netherlands and Belgium
were amongst the main donors who supported the process with financial and
technical expertise.[35] It was
soon recognized that three months training for each new brigade was
insufficient, but only some brigades received additional training. Overall, 18
brigades were integrated.

Following national and provincial elections in 2006, many of
the newly integrated brigades were sent to frontline positions in eastern Congo
where the violence continued. In 2009, during a rapid integration process in
North Kivu, an estimated 12,000 combatants from rebel groups joined the
Congolese army ranks swelling the army's numbers in eastern Congo alone to an
estimated 60,000 soldiers. These new integrations exacerbated longstanding
problems of discipline, pay, and command and control, and contributed further
to the wide-scale abuses committed with impunity by Congolese army soldiers.[36]

Sexual Violence

Since its creation in 2003, the FARDC has been one of the
main perpetrators of documented sexual violence in Congo. Army commanders have
frequently failed to stop sexual violence and punish those responsible. These
crimes are serious violations of international humanitarian law, and some
constitute war crimes.[37]
Although other armed groups have also committed many brutal acts of sexual
violence against women and girls, the sheer size of the Congolese army and its
deployment throughout the country make it the single largest group of
perpetrators. FARDC soldiers continue to commit gang rapes, rapes involving
injury and death, and abductions of women and girls. In 2007, MONUC found that 54 percent of all sexual violence cases
reported in the first six months of that year were committed by the FARDC
soldiers.[38]
Between January and May 2009, Human Rights Watch documented 143 cases of rape
by army soldiers in North Kivu.[39] A UN
official in North Kivu warned that the number of reported rapes by FARDC
soldiers was on the rise in early 2009.[40]

Soldiers of different brigades in different parts of
Congo-including integrated brigades-have committed crimes of sexual violence.
This report focuses on the 14th brigade as an example, not as an
exceptional case. For example, the 4th brigade committed many acts
of sexual violence in Aveba, Ituri, Oriental Province, in 2005-2006.[41]
The 62nd, 63rd and 67th brigades were responsible
for widespread acts of sexual violence in central Katanga in 2006.[42]
In 2007, members of the 1st, 2nd,
and 11th integrated brigades raped girls in Ituri, North Kivu and
South Kivu respectively.[43] In September 2008, soldiers of the 7th and
15th integrated brigade raped women and girls in Rutshuru and Lubero
territory, North Kivu.[44] The UN has continuously emphasized the problem of
FARDC abuses against civilians, including sexual violence, and provides details
on cases in its reports.[45]

III. The Case of the 14th Brigade

The 14th brigade exemplifies many of the problems
of Congo's army, as well as the challenges in preventing and punishing army
abuses.

Creation, Structure, and Deployment of the 14th
Brigade

The 14th brigade was created in 2006. The majority
of its soldiers were former combatants of the Congolese Rally for
Democracy-Goma (RCD-Goma), one of the main, Rwandan-supported rebel groups that
fought the national government during Congo's second war. In addition, the
brigade also included former Mai Mai combatants (an armed group that opposed
the RCD-Goma) andmembers of the former government army, the Forces
Armées Congolaises (FAC). The brigade was divided into four battalions each
broadly divided along ethnic lines which separated the Kinyarwanda-speaking soldiers
(Congolese Hutu and Tutsi) from those of other ethnic groups.[46]

From its creation to early 2009, Col. David Rugayi, a Kinyarwanda
speaker from Masisi (North Kivu), served as the brigade's commander.[47]
During the second Congo war, Rugayi helped to establish a militia in support of
the RCD-Goma, known as the Local Defence Force. In 2004, he was appointed a
major in the 83rd brigade, a former RCD-Goma unit that had not yet
been sent to brassage. In 2006 he was promoted to the rank of colonel
and integrated into the new army as commander of the FARDC's 14th
brigade.

The 14th brigade was one of the last brigades to
undergo brassage in 2006. It had nine months of training and
instruction, with support from South Africa, and instruction from the
International Committee of the Red Cross (ICRC) on international humanitarian
law, including on civilian protection (see below for further details).[48]
Although brassage wasaimed at overcoming previous political and
ethnic divides, many 14th brigade soldiers felt aggrieved about the
predominant role of Kinyarwanda speakers (mostly Congolese Hutu) in positions
of command. In the words of one disillusioned former 14th brigade
member, Colonel Rugayi "put his own people in positions of power."[49]

Since 2006, the 14th brigade has moved around an
area straddling the border between North and South Kivu.[50]
In late 2007, the 14th brigade was sent to the frontline to fight
the National Congress for the Defense of the People (CNDP), a rebel group led
by Laurent Nkunda, a Congolese Tutsi who had refused army integration. In
December 2007, in a tense battle at Mushake (Masisi Territory, North Kivu), the
CNDP defeated a vastly superior number of Congolese army soldiers, including
those of the 14th brigade. Soldiers fled the battlefront and
dispersed in multiple directions, committing many abuses along the way.[51]
The defeat was humiliating for the Congolese army and forced the government
into peace discussions with Nkunda's CNDP.

After the Mushake debacle, the military hierarchy in
Kinshasa temporarily suspended Colonel Rugayi who they suspected of having
supplied the CNDP with weapons or information.[52] Army
commanders also decided to canton the brigade further south, in Kabare (Kalehe
territory, South Kivu), under the command of Rugayi's deputy, Col. John
Tshibangu, an officer from another part of Congo. The move to South Kivu was
considered by soldiers and by some military leaders as punishment for having
lost the battle against the CNDP.[53]

From January to August 2008, the brigade was reconstituted
in the town of Kabare. This period was characterized by widespread looting and
abuses against civilians, as well as internal conflict within the brigade. When
the approximately 4,500 troops and their families arrived in Kabare, the army
provided them with no provisions, food, or shelter.[54]
The soldiers were left to their own devices and as a result preyed on the local
population for their basic needs. They destroyed fields, cut down a large
number of trees and dismantled local wooden homes for firewood or their own
shelter. Soldiers also erected barricades, extorted money from civilians,
arbitrarily detained, tortured, and killed civilians, and committed acts of
sexual violence against women and girls. One officer of the 14th
brigade described the situation as "anarchy."[55]

There was also considerable internal division within the
brigade. A group of Kinyarwanda speaking soldiers, led by a battalion commander
and ally of Colonel Rugayi, Maj. Ringo Heshima, rejected Colonel Tshibangu's
leadership. They were angry about Rugayi's suspension and their cantonment in
Kabare, and might have used the violence to attempt to attract attention from
decision-makers and the public to their grievances: a human rights activist in
Bukavu reported that the soldiers encouraged them to inform the media about
their abuses.[56] The
same human rights activist visited Kabare and commented: "[The soldiers] lived
according to their previous allegiance.... This was not a brigade any more, it
was an amalgam of people who did not obey one commander."[57]
When Colonel Tshibangu ordered troops to go further south to Baraka, they
refused to go. Anger against Tshibangu over lack of food and over the plan to
move south culminated in a mutiny on June 26.[58] There
was shooting during most of the night of June 26, and according to press
reports, one soldier died, and several civilians were injured, tortured, or
otherwise abused.[59]

In July 2008, Colonel Rugayi was reinstated as brigade
commander of the 14th brigade by the military hierarchy; the results
of the investigations against him were not made public and remain unknown. In
August 2008, the brigade returned to Minova and surrounding areas.

In early 2009, the 14th brigade was mixed with
combatants from the CNDP and other rebel groups. The newly mixed forces had
orders to participate in military operations against the Democratic Forces for
the Liberation of Rwanda (FDLR), a Rwandan militia. Ringo Heshima was promoted
to the rank of colonel and took over as commander of the brigade.[60]
Colonel Rugayi was promoted to become the commander of the 32nd
sector, made up of three brigades involved in operations against the FDLR in
South Kivu. Two brigades in the 32nd sector (also sometimes referred
to as the 5th axis), including one commanded by Col. Heshima, are
made up of former 14th brigade soldiers as well as newly integrated
combatants from former armed groups. Officially, the 14th brigade no
longer exists, though many still refer to the brigade of Colonel Heshima as the
14th brigade.

The 14th brigade is not the only brigade that has
undergone serious internal conflict and escapes full control by the military
hierarchy. Brigade commanders often have a considerable degree of autonomy and
have sometimes used this to further their control over local populations and
mineral wealth. Some other brigades, particularly in North Kivu, have refused
to join brassage and joined the CNDP.[61]
Tensions over pay have often resulted in violence within the army as well as
against civilians.[62]

Sexual Violence by the 14th Brigade

Throughout its existence, soldiers from the 14th
brigade have been involved in many acts of sexual violence. Human Rights Watch
documented 26 cases of rape perpetrated by soldiers of the 14th
brigade. Twenty-three of the cases occurred since the start of 2008, the others
before. Soldiers were identified as members of the 14th brigade
because they wore purple epaulettes, the color designated for members of the 14th
brigade, because they lived at a military camp where the soldiers of the 14th
brigade were based, or because their superiors or peers identified them as
such. Such detailed process of identification was necessary as Colonel Rugayi
has claimed that some of the abuses in Kabare might have been carried out by
members of the 3rd brigade, stationed nearby, by demobilized
soldiers, police, and civilians.[63]

Acts of sexual violence were often carried out at the same
time as looting activities, a trend seen in many other parts of eastern Congo
where Congolese army soldiers are based.[64] In many
of the cases, women and girls were gang raped. Those who tried to resist were
frequently beaten, shot, or otherwise injured.

A girl raped by soldiers of the 14th brigade in
late August 2008 when she was 17 years old told Human Rights Watch what
happened to her:

I had gone to the fields to find potatoes. I was returning
to the house. Then I saw soldiers coming toward me. They asked what I was doing
in the fields. They said I could choose: give them food or become their wife. I
said to take the food. They refused and took [raped] me, then they took the
food anyway. They were two soldiers of the 14th brigade, with purple
epaulettes and a solid color uniform. When the rape happened, there had been
fighting and insecurity. The 14th brigade had fought CNDP that same
day.[65]

A woman from Sake, about 25 kilometers from Goma, described
how she was raped by 14th brigade soldiers in September 2008:

I was leaving the field in Mitumbale, near Sake, it was
afternoon. When I arrived in Kihanga [about two kilometers from Sake], soldiers
raped me. They were two soldiers from the 14th brigade. They were
about 25, 26, 27 years old. They had purple epaulettes. We were three women and
two ran away. Afterwards my friends came to help me. They took me to get
medical treatment in Goma. I was bleeding a lot, and I was given medicine. I
still take the medicine. I did not do a HIV test.... My husband left me. I now
farm for other people and look after their children.[66]

The 14th brigade soldiers behaved particularly
badly during the time when they were based at Kabare. A local teacher described
this period as the "time of general trauma." He told Human Rights Watch how his
17-year-old niece was raped and injured by 14th brigade soldiers in
Kabare on the night of the mutiny on June 26, 2008. As the girl tried to
resist, the soldiers deliberately injured her eye to punish her. On another
occasion, the same teacher witnessed the rape of two other girls. He told Human
Rights Watch what he saw:

I was on my way back from Bagira. I met a group of girls
and we walked together. We encountered a group of soldiers. It was around 6:30
p.m. and dark. Those who had the strength ran away. The soldiers caught two
girls and raped them. They were about 14 or 15 years old. I fled and heard the
screams of the girls. People made loud noise so the soldiers ran away. The
girls cried all the way home. There have been no judicial investigations.[67]

A 13-year-old school girl from Kabare witnessed the rape of
her older sister:

One evening some soldiers came to attack us. This was in
February or March 2008. They said they would kill our father. The soldiers were
angry with my dad because he had stopped them from cutting down an avocado tree
[as firewood].... We stayed in the living room. Two soldiers raped my bigger
sister. When he had finished, he injured her with a knife at the eye, and he
did the same with my brother.... Then they left. My mother brews beer and they
took the money she had earned from that.[68]

Soldiers also abducted women and girls and kept them under
their control as sexual slaves for extended periods. One 23-year-old victim
described her ordeal:

We were three young women and we were on our way to
Cirunga. They [the soldiers] raped us and dragged us to their camp which was
not far away. I stayed there for one month, under constant supervision. Even
when I went to fetch water, he came with me to ensure that I did not run away....
There was no conversation between us, he had sex with me at any moment, when he
felt like it, and with a lot of violence. I spent my days crying. I begged God
to free me from this hell. The time was long enough to get pregnant.... One day
they all went to the military parade in Bukavu, I seized that moment to...run
back home.[69]

Some soldiers also had sexual relations with children,
amounting under Congolese law to statutory rape regardless of consent. As a
soldier of the 14th brigade explained, "soldiers find a girl who
lives miserably, and offer her money, and she accepts."[70]
One Kabare resident remembered how his niece was approached by a soldier:

Lots of girls were taken as girlfriends and wives. My
wife's sister was taken, she was in the second year of secondary school, 15
years old. I could say she left with him [a soldier] voluntarily. He passed by
to see her, we told her it wasn't a good idea but she left with him. He was
maybe 32 years old, I don't know his name. Everybody was afraid to protest to
the commander. The soldier gave no dowry.[71]

As a result of the rapes and other violence, many people
fled their homes; even the highest local authority, the Administrateur du
territoire (territorial administrator), fled. Most civilians only returned
when the brigade left.

After the brigade's return to the Minova area, soldiers
continued to commit sexual crimes. A soldier of the 14th brigade
described the situation in March 2009: "There is a lot of forced marriage,
where soldiers will say, 'if you don't marry me, I will shoot you.'"[72]

In the first half of 2009, Human Rights Watch received
testimony of sexual crimes committed by soldiers in newly integrated brigades
made up of former 14th brigade
soldiers, as well former combatants from the CNDP and another armed group, the Coalition
of Congolese Patriotic Resistance (PARECO).[73] A 15-year-old girl from Kihonga (Kalehe territory,
South Kivu) described how she and her three-year-old sister were raped on May
5, 2009 by two FARDC soldiers:

There were six soldiers who came into my house. They first
raped my three-year-old sister, and then two of them raped me while the others
looted our house. They threw my newborn baby onto the ground, and because of
the shock he is in a lot of pain whenever anyone touches his legs. The soldiers
were wearing military uniforms and they spoke Kinyarwanda. There were Hutus and
Tutsis and other tribes as well. After they raped me, they took my mother away
with them. She hasn't come back yet, and I think she must be dead. Five other
houses in Kihonga were visited the same night by the soldiers.[74]

Sexual violence has serious, long-term consequences. Some
victims interviewed alluded to the pain and trauma they had suffered; sometimes
they also mentioned that other family members were deeply affected by what had
happened. Several victims suffered wounds on their genitals, weeks of bleeding,
or other medical consequences. Despite the risk of HIV infection, not all
victims interviewed had taken an HIV test. Those married were often rejected by
their husbands, and often left their homes, losing an income and most
belongings. Others were unable to continue their usual work due to their poor
physical condition, or stopped going to school. Several victims had babies from
the rape, facing the challenging task to raise a child born from violence. A
30-year-old woman who had been raped, injured, and looted by three soldiers of
the 14th brigade told Human Rights Watch:

My husband repudiated me. He told me to go back to my
village. But my parents are dead. So I came to [woman's name withheld]'s house.
She gave me a skirt and this cloth to carry the baby on my back and to wear it
when I am washing the skirt. After I got here I discovered I was pregnant from
rape.... Every time I go out people say that my husband abandoned me.[75]

Civilian Protest against Abuses by the 14th
Brigade

Civil society and local residents have frequently and loudly
complained to local, provincial and national authorities about the human rights
violations committed by 14th brigade soldiers, including cases of
rape. Despite the abundance of these complaints and the information to back
them up, military and civilian authorities have not taken the complaints
seriously and have done little to stop the abuses.

Protests about the abuses by the 14th brigade
were particularly numerous when the soldiers were based in Kabare. Several
Congolese human rights organizations, the Catholic church, a traditional leader
(Mwami), and local residents addressed letters and reports to the
military authorities, the governor of South Kivu and President Joseph Kabila.[76]
The vice-governor of South Kivu, encouraged local residents to write letters of
complaint to national authorities in the hope it might elicit a response.[77]
The letter and reports urged South Kivu's governor and President Kabila to
transfer the 14th brigade elsewhere, to start judicial proceedings
against the perpetrators, and to give the victims assistance. The South Kivu
provincial assembly also debated the matter and appealed to the governor to
request the brigade's transfer from the province. The governor, who has no
authority over the national army, responded that the situation of the 14th
brigade was outside his competence.[78]

Senior officers and commanders in the Congolese army who did
have authority over the soldiers and who were responsible for having put them
in Kabare with no provisions and food, abdicated responsibility for the unruly
brigade.

UN agencies received reports about the abuses by the 14th
brigade, visited Kabare several times, and set up a task force on the 14th
brigade.[79]
However, it was only after Colonel Rugayi's return in July 2008 that the UN
established regular meetings with the brigade commander and pressed-largely
unsuccessfully-for action on human rights abuses. After the departure of the
brigade, in October 2008, the UN assessed the extensive damage done by the 14th
brigade and organized humanitarian aid to assist the population.[80]

Lack of Clear Chain of Command

Soldiers in the 14th brigade were able to commit
abuses without consequence partly because of confusion over chain of command
and because commanders made aware of the problems did not take action against
those responsible. The brigade lacked a clear chain of command both within the
field, where Colonel Tshibangu's leadership was not accepted, and at senior
levels in the military hierarchy. Military authorities who should have been in
a position to give orders were either unwilling or unable to control the
troops. The confusion over chain of command became particularly evident during
the 14th brigade's stay in Kabare.

Following brassage, the 14th brigade was
deployed in North Kivu, which is designated for military purposes as falling
within the 8th military region, under the authority of the 8th
region's military commander, General Mayala. But in late 2007, the brigade was
ordered to regroup at Kabare, South Kivu, within the boundaries of the 10th
military region, commanded by General Mazunzu. When problems occurred within
the brigade and its soldiers carried out wide-scale abuses and harassment of
the local population, the 10th military region claimed it was not
responsible for the brigade, while the 8th military region stated it
was responsible, but did nothing to deal with the situation.[81]
The army's headquarters in Kinshasa failed to make clear which region was
responsible. Different military officers gave contradictory answers when asked
by Human Rights Watch about this. According to some, the 10th
military region was responsible for the brigade.[82]
General Masunzu, the head of the 10th military region, went to
Kabare several times and urged the brigade's rebellious units in vain to move
to Baraka. When the 10th military region sent trucks for the
transport to Baraka, some soldiers rebelled and there was shooting.[83]
On June 13, soldiers also shot at General Masunzu's car and hit one of his
guards.[84]
According to several residents, General Masunzu said publicly on the radio that
the 10th military region had no control over the 14th
brigade. He also told a human rights organization that the brigade reported
directly to Kinshasa.[85]

In contrast, in an interview with Human Rights Watch,
General Mayala, head of the 8th military region of North Kivu, said
the 14th brigade depended on his military region for "operational"
purposes, while depending on the 10th military region for
"administrative" purposes, such as the payment of salaries.[86]
However, the 8th military region did not take any action to respond
to the problems in Kabare.

When Human Rights Watch asked soldiers within the brigade
who they took orders from, a former 14th brigade official said that
the brigade was under the control of the "operational command," a command
structure for troops involved in military operations, separate, he said, from
the military regions, and reporting directly to the headquarters in Kinshasa.[87]

De facto, control was with the military headquarters in
Kinshasa, as illustrated by the suspension of the brigade commander in December
2007. Kinshasa's authority over the brigade was further evidenced by action
they took following the mutiny against Colonel Tshibangu. The headquarters sent
a high-level delegation to investigate the event composed of General Masamba,
chief of the air force; Colonel Finda, a senior intelligence officer from
Kinshasa; General Masunzu military commander of the 10th military
region; and two military prosecutors.[88]
Following their investigation, the Kinshasa headquarters reinstated Colonel
Rugayi as the brigade's commander and decided that it be moved to Minova;
Colonel Rugayi also advocated the move to a different location.[89]
According to a former member of the 10th military region, this
solution was considered a compromise between the rebellious soldiers who
refused to move further south, and the 10th military region (and
residents) which wanted the brigade to leave Kabare.[90]

IV. Limited Impact: International and Government
Efforts to End Sexual Violence by the Congolese Army

Action on Sexual Violence by the Congolese
Government and Parliament

The protest by Congolese women activists, human rights
groups and humanitarian agencies, as well as advocacy by Congolese women
lawmakers has helped bring about important action by the Congolese government
and parliament including the 2006 adoption of a progressive and far reaching law
on sexual violence.

The Ministry of Gender, Family Affairs and Children is the
lead Congolese government department dealing with sexual violence. Minister
Marie-Ange Lukiana considers the fight against sexual violence a priority and
has welcomed the UN's Comprehensive Strategy on Combating Sexual Violence in
DRC, to which the government and NGOs contributed. The strategy makes strong,
detailed recommendations in four areas: combating impunity; protection and
prevention; security sector reform; and multi-sectoral assistance for health,
psycho-social support and reintegration of victims.[91]
The minister chairs a cabinet task force on the issue as well as a coordinating
body on combating sexual violence composed of international and national
actors.[92]

The government has launched an awareness-raising campaign,
provided some-limited-assistance for victims, and implemented some measures to
end impunity. In November 2007, President Kabila's wife, Olive Lemba Kabila,
opened a country-wide campaign supported by UN agencies to combat sexual
violence, aiming to raise awareness and push for an end to impunity.[93]
The first lady's involvement gave the issue of sexual violence a higher
profile. More recently, the campaign has been collecting signatures against
sexual violence under the motto "I denounce" ("Je dénonce").[94]

In June 2008, the Ministry of Justice adopted a "road map"
for fighting sexual violence, outlining a six-point program to advance judicial
responses to crimes of sexual violence. Important elements of the road map were
efforts to exempt victims of sexual violence from paying court costs; adopting
a standardized medical certificate for victims of sexual violence; increasing
female judicial personnel; compensating victims of the 2003 mass rape in Songo
Mboyo, Equateur province; and establishing a specialized judicial body to
investigate and try sexual offences.[95]

More recently, in March 2009, the minister for gender,
family affairs and children also announced the creation of a fund for the
protection of women and children, and the creation of an agency for the fight
against sexual violence; the mandate of this agency has not yet been defined
publicly.[96]
According to the minister, the agency will be operational, providing victim
assistance.[97]

While these are crucial steps in the fight against sexual
violence, the government needs to do more to move from words to action. For
example, the "road map" by the Ministry of Justice has yet to be implemented,
more than a year after its adoption. The UN's Comprehensive Strategy has yet to
become official government policy. There needs to be a stronger political will
to deal with the underlying causes of sexual violence in the security forces,
such as impunity and lack of clear command responsibility, through security sector
reform and military justice (see below).

International Action on Sexual Violence

Progress in Assistance to Victims

International donors and NGOs have taken many measures to
provide medical, psychological, social, and legal assistance to the victims and
to encourage greater Congolese government involvement in ending sexual
violence. For example, the Canadian government has provided approximately US$13
million, and the Belgian government approximately US$10 million to various
medical, psycho-social and legal assistance projects, implemented by UNFPA,
UNICEF and the Office of the High Commissioner for Human Rights (OHCHR).[98]
Many bilateral donors fund programs for victims of sexual violence through
multi-donor initiatives, such as the Humanitarian Action Plan. In addition,
many international NGOs are devoting significant non-state funding to
assistance for victims of sexual violence. While assistance for victims is
still exceeded by demand and has not always been sufficiently coordinated,[99]
it has helped improve the situation of a considerable number of victims.

Insufficient Efforts in Protection of Women and
Girls

According to a 2008 inventory on donor funding on sexual
violence produced by MONUC, the focus of funding has been on medical treatment,
legal assistance, and capacity-building for government and NGOs. In contrast,
only 11 percent of funds were destined to protect women and girls from sexual
violence, for example through army training.[100] While
some international funding, such as support to MONUC troops, might indirectly
contribute to the protection of women and girls, the figures point to a need
for stronger protection and prevention, as well as the need to mainstream
protection against sexual violence issues into other programmatic areas.

UN Action on the Policy Level

The UN has taken important steps to push for a stronger
political response to sexual violence against women and girls in armed
conflict, both globally and in Congo.

In July 2005, the UN Security Council adopted Resolution
1612 on children and armed conflict. The resolution established a working group
on children and armed conflict and a UN monitoring and reporting mechanism to
collect information on violations against children in armed conflict, including
sexual violence. As part of the monitoring and reporting mechanism, a task
force of UN agencies and civil society actors was set up in Congo. Three
reports on Congo have since been submitted to the Security Council through the
mechanism, each drawing attention to widespread incidents of rape and other
sexual violence against children.[101]
In response to the Secretary-General's reports, the Security Council working
group adopted specific recommendations urging the Congolese government to
ensure that persons responsible for crimes committed against children are
prosecuted.

The Security Council's work under Resolution 1612 has
focused on the recruitment and use of child soldiers. In particular, the
resolution made the existence of child soldier
recruitment a prerequisite for the establishment of a monitoring and reporting
mechanism in a country, and it called for concrete action plans to end the
recruitment and use of child soldiers. In recent months, the Security Council
has started to give greater attention to sexual violence. A presidential
statement issued on behalf of the Security Council in April 2009 expanded the
mandate of these action plans to "address all other violations and abuses
committed against children."[102] The Security Council is also currently considering
whether the occurrence of sexual violence against children alone can serve as a
prerequisite for setting up a monitoring and reporting mechanism. However, to
date it has not made a commitment to consider sanctions against forces that
fail to effectively end sexual violence by their members.

In June 2008, the Security Council adopted the landmark
Resolution 1820, condemning the use of rape and other forms of sexual violence
during war time, and announced targeted measures against responsible parties to
the conflict.[103] The resolution
built on previous work, notably Resolution 1325, which pushed for the inclusion
of women and gender perspectives into peacekeeping troops and peace
negotiations.[104]

While there was little UN action on sexual violence in Congo
until about 2001, UN agencies-together with international and Congolese
NGOs-have played an increasingly important role in addressing sexual violence,
in particular by coordinating the many actors involved. However, UN
peacekeepers have also themselves been involved in sexual abuse in Congo,
including notably sexual exploitation of minors.[105]

In April 2009, MONUC launched a comprehensive strategy to
combat sexual violence. It was swiftly adopted by all UN agencies as a joint
platform, and the government has also welcomed it.[106]
Regarding impunity and security sector reform, the strategy proposes the
strengthening of judicial institutions, improving access to justice,
implementing the law on sexual violence, establishing a vetting mechanism in
the army to exclude individuals who lack integrity regarding human rights and
best practices, and including support for victims of sexual violence into
demobilization programs. The strategy also underscores the importance of
prosecuting civilian and military high-ranking officials.[107]

Another
important element of the UN response is the Mapping Exercise. Under the
leadership of the OHCHR, this initiative-which is currently underway-aims at
creating an inventory of the most serious human rights and international
humanitarian law violations in the Democratic Republic of the Congo between
1993 and 2003. The Mapping Exercise was initiated following a request by the
Secretary-General and is mandated by the Security Council to formulate options
for transitional justice in Congo.[108]

Security Sector Reform: Lack of Political Will to
Break with the Past

The Congolese government and international donors have
embarked on a process of security sector reform-that is, the process to reform
and rebuild the army, police and judiciary. They have given top priority to the
program and to date have heavily invested in it, with more financing due to be
allocated in the coming years.[109] The
two main international supporters of security sector reform in Congo are the UN
and the European Union (EU). In 2007, the Security Council mandated MONUC to
undertake training and capacity-building with the army and police and advise
the government on efforts to strengthen the judiciary. Several other UN
agencies are also involved in security sector reform.[110]
In parallel, the EU has established the EU Security Sector Reform Mission in
the Democratic Republic of Congo (EUSEC) and the EU Police Mission in the
Democratic Republic of Congo (EUPOL) to support reform of the army and police
respectively.[111] The EU
also runs a program for the restoration of the justice system in eastern Congo.
Other bilateral partners include the United States, Belgium, the United
Kingdom, the Netherlands, Angola, and South Africa.

Security sector reform-which started with brassage in
2003-has been plagued by serious problems which affect the army's capability to
respect and enforce human rights standards. From the beginning, there were
serious problems with the brassage process.The main political
leaders were reluctant to commit their troops to army integration, preferring
to keep their best soldiers and weapons in reserve should the peace process not
provide the dividends they were seeking. Many new FARDC soldiers remained loyal
to their previous commander and did not accept the new leadership, as
illustrated by the case of the 14th brigade. Armed group leaders and
other officers responsible for grave abuses were integrated into the FARDC
without any vetting, thereby promoting those with known track records of human
rights abuses, including rape, into senior command positions.[112]Attempts to prevent and punish sexual violence by members of the Congolese
army as part of security sector reform have been insufficient. The government
has also lacked the political will to fight corruption. Embezzlement of the
vast sums of money set aside for the process has undermined the effort.[113]
When corruption has been uncovered-as was the case for General Sungiglanga
Kisempia, the former chief of staff of the Congolese army-the government has
failed to arrest and prosecute those responsible.[114]
Another problem is that there have been competing visions of security sector
reform in government, and a lack of coordination among donors.[115]

Disconnected from the Fight against Sexual Violence

On ending sexual violence, the current government policy for
army reform lacks a gender and human rights component. In its plan for the
army, the government describes "profound weaknesses" in the army with respect
to the army's operational capabilities, administration, logistics, and social
issues-such as poor living conditions-but it does not mention the army's poor
human rights record nor the problem of sexual violence committed by so many of
its soldiers.[116] Such a
flagrant oversight in the face of mass sexual violence and other atrocities
committed by government soldiers illustrates a shocking lack of appreciation of
the problem.

Limited Impact of Army Training

Although the army has received extensive training on
civilian protection, the impact on preventing sexual and other abuses has been
limited. One reason for this might be that commanders avoid the training,
sending the signal that the training is unimportant. However, there has not
been any comprehensive evaluation of army training that would help draw more
detailed conclusions on the effect of training.

During brassage, units sent for integration underwent
training on international humanitarian law, including the protection of
civilians and command responsibility. Training was carried out by the Congolese
army leadership together with various foreign military experts from South
Africa, Belgium, France, and other countries. Since this initial training,
several army training programs have been established and implemented, including
by the UNHCR, MONUC, the ICRC, and international and Congolese actors.[117]
For example, UNHCR and the ICRC have regularly implemented trainings on
international humanitarian law; protection from sexual violence and pillaging
has been a central element. Trainings have taken a few hours or a day, or
sometimes longer.[118] MONUC
has carried out three months long trainings, including actual military training
as well as instruction on international humanitarian law and military justice.[119]
In addition, several training programs have been specifically developed for
members of the military justice system. Some training programs have also
focused on the dissemination of the sexual violence law.[120]

Training programs are usually intended to reach soldiers of
all ranks, including officers. But according to agencies carrying out training
on human rights, commanders sometimes stay away from training programs and only
send foot soldiers. In other instances, commanders have attempted to take
complete control of the training.[121] One 14th
brigade soldier claimed that none of the senior commanders of the 14th
brigade ever participated in training on civilian protection but instead sent
low-ranking soldiers.[122]

To date, no comprehensive evaluation of army training has
been carried out. Indeed, no single actor, not even the government, knows who
all the agencies involved in training are.[123] Some
agencies have carried out their own evaluations, for example by asking training
participants to fill in forms as a way of assessing their knowledge and getting
feedback.[124] But
even following the behavior of trained soldiers in order to measure the impact
of army training on respect for human rights is a challenging task when
soldiers get regularly transferred and deployed into combat zones and the chain
of command is not fully functional.[125]

The experience of the 14th brigade illustrates
the limited impact that training as it is now has had in fighting sexual
violence. Members of the 14th brigade received several training
sessions on the protection of civilians, their property and the prohibition on
sexual violence. The brigade's commanders reminded soldiers repeatedly of the
prohibition on sexual violence during the daily military parade. Several 14th
brigade soldiers described to Human Rights Watch what they learned in training.[126]
One soldier explained:

For women's rights, they tell us, 'if you meet a woman you
cannot take her sexually by force.' If you are caught you will be arrested and
punished. They told us this at the brassage centre in Rumangabo... My
company chief also says this once or twice each week.[127]

Despite these trainings and instructions, soldiers displayed
misapprehensions of the legal prohibition on sexual violence. Some soldiers
interviewed by Human Rights Watch understood the current law as a mere
prohibition on sex with minors. They also understood payment as legitimizing
sex, regardless of consent.[128] A 14th
brigade soldier convicted of rape tried to justify his actions by saying that
he paid the victim money.[129] Other
soldiers attempted to explain sexual relations between soldiers and minors as a
consequence of their own poverty. They said that in their view an adult woman
would require more money for a sexual relationship than a young girl.

Training is important, but it will only be effective if it
is embedded within a wider program of disciplinary action and improved command
and control.

"We Live Like Dogs": Poor Living Conditions of
Soldiers

Security sector reform comprises measures to improve the
living conditions of soldiers and their families, including through regular,
sufficient payments, and the construction of military barracks. The government
has tripled salaries since 2005 in integrated brigades, and EUSEC has led
efforts to establish a functioning payroll, a major task due to widespread
corruption and logistical obstacles.[130]

Despite these steps, many soldiers lack basic necessities,
including food, clean water, adequate housing, and medical or psychological
care.[131]
Salaries are generally low, ranging from 34,776 francs congolais (FC) per month
for a simple soldier to 61,956 francs congolais for a Lieutenant General
[approximately US$41 and US$73].[132]
However, commanders may get extra payment for their responsibility as commander
(command bonus, or prime de commandement) of up to over US$1,000.[133]
Salaries are also sometimes embezzled by commanders.[134]
Soldiers often live apart from their families and might not see them for
several years. While the situation of the 14th brigade in Kabare was
particularly bad, it was also indicative of larger problems. One soldier of the
14th brigade spoke about living conditions in March 2009:

We live like dogs. We live on civilians, asking them for
their bananas. It's been three months without payment or something to eat....
Before, I got 37,000 FC a month [approximately US$44]. The commander would then
take 2,000 or 5,000 FC from that. January was the last time we got rations. I
got beans and flour and maize. I have two children, but with a military salary
it is not enough to support them.[135]

Many soldiers see the solution to their problems in barracks
that house soldiers and their families and offer schools for their children.
One pointed out that the construction of barracks could also help reduce
looting and related abuses:

If we had military camps that are well-equipped, that would
limit the vagabondage militaire [soldier's vagrancy].... My biggest
concern is that I want to have my wife and children here. But where would they
live? I have no place for them. Recently the new commander of the 14th
brigade, Heshima, has chased the wives of some soldiers away. They don't know
where to go.[136]

Similarly, the brigade's former intelligence officer
reflected upon the need for better psychological support to soldiers: "Some
soldiers crack up, and there is no psychological support. Some are on drugs and
alcohol."[137]

Poor living conditions of soldiers cannot justify any of the
sexual crimes committed by the Congolese army. But efforts to improve access to
basic necessities and look after soldier's families might ultimately contribute
to civilian protection.

The Military Justice System: Prosecuting Foot
Soldiers, Not Commanders

Limited Progress in Prosecuting Lower-Ranking
Soldiers

The military justice system has made some-limited-progress
in bringing ordinary soldiers to account for their sexual crimes. During 2008,
27 soldiers were convicted of crimes of sexual violence in the Kivus. But
military justice has entirely failed to address the criminal responsibility of
high-ranking officers, including their command responsibility. The most senior
officer held to account for crimes of sexual violence in the Kivus has been a
captain-no major, lieutenant colonel, colonel, or general has been prosecuted.[138]

In the last few years, the government and international
donors have undertaken great efforts to strengthen the Congolese justice system,
including the military justice system. Following a multi-year justice audit,[139]
the EU established a €15
million ($20.5 million) Program for the Restoration of Justice in Eastern Congo
(REJUSCO).[140]
REJUSCO renovates court and prison buildings; carries out trainings for
judicial staff; helps fund transport of judicial staff and victims for
investigations and court sessions; and arranges for mobile courts (chambres
foraines) in small cities and rural areas.[141]
MONUC and other organizations-including Congolese NGOs-have also carried out
training on the military justice system and the protection of civilians under
international and Congolese law for commanders, military prosecutors, judges,
court clerks, and other judicial staff.[142] Other
important international actors active in this domain include Avocats Sans
Frontières (ASF) and the American Bar Association.[143]

As a result of the efforts to strengthen the judiciary and
the 2006 sexual violence law, the military justice system is now dealing with a
higher number of sexual violence cases; the same is true for the civilian
courts. Military justice officials know more about the issue and appear more
willing to try cases of sexual violence. They are also taking steps to protect
children who are victims of rape, and closed sessions are now held as a matter
of course when the victim is a child.[144]

Progress in the military justice system has been somewhat
slower than in the civilian judiciary, but still noticeable compared to 2003,
when one rape conviction of a low-ranking soldier in Bukavu was seen as
exceptional.[145] During
2008, agencies registered 88 cases of sexual violence before military courts in
South Kivu. Military courts adjudicated 18 cases were during the year; 15 led
to convictions and three were acquitted.[146] In
North Kivu, 34 cases of sexual violence were heard before the Auditorat de
garnison, the military court for lower-ranking soldiers, during 2008, and
10 led to convictions.[147]In the first quarter of 2009 alone, the Auditorat
de garnison held 17 rape trials in Goma and four rape trials (as mobile
courts) in Walikale, some 135 kilometers from Goma, in which 20 soldiers were
convicted of sexual violence.[148] Most
rape cases are punished with prison sentences ranging from five to the maximum
sentence of twenty years.[149]

Military courts have been proactive in applying the Rome
Statute to cases of war crimes and crimes against humanity, including for the
crime of sexual violence. In April 2006, a military court in the province of
Equateur in western Congo tried and found guilty seven soldiers on crimes
against humanity for the collective rape of at least 119 women and girls in the
village of Songo Mboyo in 2003.[150] It was
the first time in Congo's history that rape was tried as a crime against
humanity as defined in the Rome Statute, and it set an important legal
precedent.[151] Courts
have convicted members of the security forces of crimes against humanity at
least twice since. In February 2008, a military tribunal in Equateur province
convicted one police officer implicated in mass rape to 20 years imprisonment
for crimes against humanity.[152] In
April 2009, in one of the above-mentioned trials in Walikale, a military
tribunal convicted 12 soldiers of the 85th brigade of crimes against
humanity for raping 22 women and 3 men.[153]

The Military Justice System Remains Weak

Despite these important advances, the military justice
system remains a weak institution. To date, only a small fraction of the total
number of acts of sexual violence committed by soldiers has been prosecuted and
nearly all such prosecutions have been of lower-ranking soldiers.[154]
No senior military figure has been prosecuted for sexual crimes, and command
responsibility is rarely the subject of investigations by military prosecutors.
Where prosecutors have brought cases on the basis of command responsibility,
they have stopped at lower-ranking officers. For example, in the April 2009
conviction in Walikale of a platoon commander (second lieutenant), there were
no investigations into the responsibility of his superior.[155]Current judicial investigations into sexual
abuses allegedly ordered by two colonels[156]-one in Rutshuru, North Kivu, and one in the Ruzizi
Plain, South Kivu-are a promising sign but it remains to be seen whether the
investigations will lead to prosecutions.

Military commanders are powerful figures in Congo, often
perceived as being untouchable. Brigade commanders receive minimal supervision
leaving them with free reign to themselves commit abuses or to allow their
troops to do so. Prosecutions are likely only to
be effective as a deterrent to combat sexual violence when high-ranking
commanders are held to account.

Congolese law hinders the prosecution of senior officers, as
the sitting judge in a court martial must have a higher rank than the
defendant. As a result of this law, many judges cannot try higher-ranking
officers; they would have to transfer the case to a different court where the
judge has a higher rank, which seems only to happen rarely.

In some cases, political or military authorities have
directly interfered in trials against higher-ranking soldiers. Prosecutors and
judges have been withdrawn or transferred when their work was considered as too
sensitive by the minister of defence. A justice
official told Human Rights Watch in Kinshasa in 2007 that he was unable to
pursue a strong and well-documented case of rape against a top general in the
Congolese army because the general in question was "protected" by influential
individuals.[157] Although this is against the law, commanders
sometimes oblige the judiciary to seek their authorization before investigating
a case; this has recently happened in North Kivu.[158] In 2006, General Mbuyamba Nsona, commander of
military operations in Ituri, instructed the military prosecutor in writing
that any arrest warrant or convocation had to be approved by himself.[159]The UN Special Rapporteur on the independence
of judges and lawyers, Leandro Despouy, after a visit to Congo in April 2007,
concluded that interference by the executive and the army in judicial
proceedings was "very common" and that Congo's judicial system was "rarely
effective... with human rights violations generally go[ing] unpunished."[160]

Each brigade has an intelligence officer, the S2, who has
the rank of investigating judicial officer (officier de police judiciaire),
and staff to investigate disciplinary failures and crimes. The brigade's
commander has the duty to request investigation into alleged crimes committed
by soldiers under his command to the military prosecutors, but they do not
always do so. Commanders often protect their soldiers and may even obstruct the
course of justice. As a result, identifying soldiers who are accused of rape
can sometimes be more difficult than identifying civilian perpetrators who lack
institutional protection. A lawyer involved with training FARDC troops
commented that "a commander does not want to cooperate with the military
justice system, it is like a reflex."[161]
Commanders tend to protect suspects by transferring them to different units,
unless they have fallen into disgrace. The lack of cooperation by commanders
undermines ongoing efforts to render justice for crimes committed by
lower-ranking soldiers.

The military justice system is also plagued by several other
problems.[162] Trials
sometimes violate due process standards. For example, some defendants do not
have access to a lawyer of their choice or trials take place without key
witnesses of the defense.[163]
Congo's prisons are notoriously dysfunctional, and there have been many cases
of convicted criminals escaping. For example, seven FARDC soldiers escaped
prison after they were convicted of crimes of sexual violence in 2006 in Songo
Mboyo, Equateur province.[164] The
above-mentioned colonel in North Kivu, accused of having ordered the rape of
four girls, was arrested, but escaped from
detention in early May 2009.[165] Courts
also order compensation payments to the victim, which are to be paid by the
convict. But victims have rarely, if ever, received compensation.

The courts lack staff, and this leads to work overload.[166]
For this or other reasons, judges and their staff have failed to investigate
cases proactively. A UN official who regularly follows up on judicial
investigations with the military prosecutor in North Kivu commented that "it is
sometimes as if we are the petitioners," meaning that the judicial authorities
often fail to take action without prompting.[167]
Investigations into crimes of sexual violence are particularly complex and
sometimes require more time, as the victims are often especially afraid to
speak out or unable to identify the perpetrator.

Military Justice and the 14th Brigade:
An Example of Impunity

The 14th Brigade's Reluctance to Cooperate with Military Justice

The number of investigations and prosecutions for sexual
violence by members of the 14th brigade is small compared to the
number of allegations. Around 10 rape cases were investigated by the brigade
since its inception, according to a former intelligence officer; he did not
provide information on how these cases had been decided by the courts.[168]
Separately, Human Rights Watch has received information about seven convictions
for sexual violence of soldiers of the 14th brigade.[169]

Some victims attempted in vain to identify the perpetrators
and to start judicial action, but the commanders of the 14th brigade
protected their men. One 15-year-old girl raped by two soldiers near Bitonga,
Masisi territory, in June 2008 was able to identify the perpetrators as members
of the 14th brigade by their purple epaulettes. She told Human
Rights Watch what happened:

I was just coming back from the river to fetch water....
Two soldiers came up to me and told me that if I refuse to sleep with them,
they will kill me. They beat me and ripped my clothes. One of the soldiers
raped me. When he had finished, he told me that if I followed them, they will
kill me. So I stayed there, and then went home... My parents said they will
look for the soldiers. We did find the soldiers but they denied it happened. My
parents spoke to a commander and he said that his soldiers do not rape, and
that I am lying. I recognized the two soldiers, and I know that one of them is
called Edouard.[170]

One victim of sexual violence and abduction in Kabare said
she tried to lodge a complaint with a higher-ranking officer (a major), as she
knew the name of the rapist, a captain, but he did not do anything.[171]

The former S2 intelligence officer, charged with
investigating crimes by his brigade, found himself confronted with a very large
number of cases. He justified his lack of action this way: "This was an
exceptional situation, do you arrest 80 percent of the unit?"[172]

The situation in Kabare from January to August 2008 was so
serious that judicial investigators did not dare go there. According to the
president of Bukavu's military court, going to Kabare "meant risking one's
life," and "the 10th military region should have protected us, but
they said to wait."[173]
However, the military justice officials-and the brigade itself-should have done
more to ensure that investigations take place.[174]
But the commander had lost control over his brigade, or at least parts of it.
At a time when 14th brigade soldiers committed serious crimes that
remained unpunished, Colonel Tshibangu and a battalion commander pledged to
cooperate with the military courts at a training seminar with a local human
rights organization; their words did not get translated into action.[175]

Colonel Rugayi himself told Human Rights Watch that the
soldiers had committed "violence and rape, the worst possible acts" during his
absence, effectively blaming his replacement, Colonel Tshibangu, for the
situation.[176] After the brigade returned to
Minova and he was restored to power, Colonel Rugayi became stricter and ordered
the detention, beatings, and torture of soldiers suspected of disciplinary
problems or crimes in the brigade's own lock-up. Human Rights Watch also
received information about one extrajudicial execution of a 14th
brigade detainee.[177]
Colonel Rugayi did not, however, cooperate with the military court, which
pressed him to hand over cases to it instead. When the military prosecutor
requested information on the arrest of one individual, Colonel Rugayi did not
respond.[178] One
prosecutorial staff member left Minova as a result of these tensions.[179]

Limited Action by Military Courts Regarding the 14th Brigade

Military prosecutors of North and South Kivu have responded
differently to crimes committed by the 14th brigade. In North Kivu,
the military prosecutor has opened over 20 files relating to crimes by the 14th
brigade in December 2007; six are rape cases. A first lieutenant of the 14th
brigade was sentenced to 15 years imprisonment for his rape of an 11-year-old
girl.[180] A
corporal was convicted of raping a woman in November 2008, and a soldier with
the rank of adjudant[181]was convicted of raping a 10-year-old girl in December 2008. Both were
convicted by an Operational Military Court, a court established to try crimes
committed in combat zones. The Operational Military Court in Goma was
established to try crimes committed by the army in the context of its battle
against the CNDP in late 2008.[182]

The military prosecutor attributed the 14th
brigade's many crimes to its leaders and its foot soldiers being "uneducated."
However, Human Rights Watch has no information of any senior officer of the 14th
brigade having been investigated for human rights abuses.

By comparison, in South Kivu military prosecutors have
pursued far fewer cases. A military court in Bukavu convicted two members of
the 14th brigade of raping a woman near Kalehe, South Kivu, in
January 2007. According to the two prisoners, they did not have a lawyer, and
victims or witnesses were absent from the trial.[183]
But during the brigade's stay in Kabare, the military prosecutor of South Kivu
did not go there to investigate crimes,[184]
despite abundant information provided by local residents and NGOs. The military
prosecutor has stated that he did not investigate cases because he did not
receive complaints against individuals.[185] But it
would have been the task of the judicial authorities to use the leads
given-such as complaints by locals-to fully investigate individual criminal
responsibility. The inaction on the part of the South Kivu judicial authorities
might also be explained by the increased insecurity in Kabare, cited above. But
they could have done more, for example by initiating investigations with
victims outside Kabare, or by pushing military authorities to provide them with
protection.

The Way Forward

Current efforts to strengthen the judiciary in Congo should
be intensified. This should include strengthening the expertise of military
justice officials to investigate the criminal responsibility of those higher up
in the chain of command, both for crimes they personally have committed and
crimes for which they bear command responsibility. Donors should also use their
leverage to push for concrete, achievable goals, such as a small number of prosecutions
of high-ranking military officials for their command responsibility in sexual
crimes, carried out in compliance with due process standards.

Lack of political independence is one of the key challenges
for the military justice system, and this will likely remain so. To effectively
combat impunity in the Congolese army and beyond, one possibility that should
be considered by the Congolese government is the creation of a judicial
mechanism containing a mix of international and Congolese professionals, as
part of the civilian judiciary. Such a "mixed chamber" would prosecute war
crimes and crimes against humanity by civilian and military leaders, focusing
on those bearing the greatest responsibility for crimes and who will not be
tried by the ICC, including high-ranking officers in the army.

The War Crimes Chamber in Bosnia
and Herzegovina is an example as to how international involvement in the
justice sector can be used to effectively establish a credible national
institution to try genocide, war crimes and crimes against humanity.[186]
International staff have played an important role in building the capacity of
their local counterparts. Investigating and prosecuting cases involving war
crimes and crimes against humanity is a complex task, particularly in relation
to senior officials who may not have been directly involved in committing these
crimes but who bear command responsibility. Including international staff with
experience in international humanitarian law for a limited period would be
vital in building the capacity and expertise of Congolese professionals to
effectively try these cases over the longer term. The Congolese government has
itself underlined the limited capacity of the justice system when arguing that
the ICC should prosecute Congolese armed group leaders accused of war crimes
and crimes against humanity. In a recent statement to the ICC, Congo's General
Prosecutor described widespread insecurity, lack of witness protection, and
lack of expertise in investigating mass crimes and gathering evidence as
obstacles to justice in Ituri, and concluded "the situation has not improved
since then."[187]

Moreover, in light of the
political interference in cases before the military courts noted above, the
creation of a new mechanism within the civilian courts and the presence of
international staff heighten the chance for greater political independence and
minimize the possibility for a politicized judicial process.[188]
In Bosnia and Herzegovina, temporary international involvement in the Bosnian
War Crimes Chamber has insulated trials from political interference.

A mixed chamber could also try those most responsible for
war crimes and crimes against humanity that the ICC will not be able to
prosecute. While the work of the ICC in trying grave crimes in Congo is of
great importance, it will be limited to a few defendants who committed crimes
after July 2002, when Congo ratified the Rome Statute establishing the ICC. To
date, the ICC is conducting proceedings against three warlords in relation to
its Congo investigation: Thomas Lubanga, Mathieu Ngudjolo and Germain Katanga,
and only the latter two defendants have been charged with sexual violence
crimes.[189] In
addition, the mixed chamber could also try those cases arising before July
2002, the cut-off date for ICC jurisdiction, as well as a far greater total
number of defendants who will never be brought before the ICC. For sexual
crimes committed before the new 2006 law on sexual violence, it would rely on
the prohibition of rape and indecent assault as stipulated in the 1959
Congolese penal code.

Congolese NGOs and academics have proposed the creation of a
mixed chamber. Already in 2005, a conference on transitional justice issues
ended with participants calling for such a mechanism. The debate about transitional
justice mechanisms is likely to get new impetus from the report of the
OHCHR-led Mapping Exercise, due to be published later this year.

Acknowledgements

This report was researched and written by Juliane Kippenberg, senior researcher in the Children's Rights Division of Human Rights Watch. Ida Sawyer, researcher in the Africa division, and Karen Stauss, consultant, participated in the
research. Cassandra Mikicic, Roland Algrant fellow and associate in the
Children's Rights Division, and Anja Friedrich, intern, provided research
assistance. Cassandra Mikicic also drafted an early version of the legal
section. Cassandra Mikicic, Anna Lopriore, creative manager and photo editor,
and Ella Moran, video and photography manager, assisted with the selection and
layout of the photos. Grace Choi, publication director, and Fitzroy Hepkins, mail manager, prepared the report for publication,

The report was edited by Zama Coursen-Neff, deputy director
in the Children's Rights Division; Anneke van Woudenberg, senior researcher on
the DRC; and Andrew Mawson, deputy program director. Marianne Mollmann,
advocacy director in the Women's Rights Division; Param-Preet Singh, counsel in
the International Justice Program; and Dinah PoKempner, general counsel also
reviewed the report.

The report was translated info French by Françoise Denayer,
and the translation was vetted by Cassandra Mikicic.

We wish to thank the many women and girls who agreed to
speak with us, and the courageous human rights activists who shared with us
their analysis and helped us arrange meetings. We are also grateful to the
soldiers who agreed to speak to us.

[2]
Names of members of the 14th brigade are withheld to protect their
identity, except for the brigade commander and intelligence officer.

[3]
Names of victims and witnesses are withheld to protect their identity.

[4]
UNFPA,"Figures on sexual violence reported in the DRC in 2008,"(Quelques
chiffres des violences sexuelles reportées en RDC en 2008), undated (on file with
Human Rights Watch). According to the Minister for Gender, Family, and
Children, over one million women and girls have become victims of sexual
violence in Congo. Human Rights Watch telephone interview with Marie-Ange
Lukiana, Minister for Gender, Family Affairs, and Children, June 9, 2009.

[5]
Human Rights Watch email correspondence with UNFPA, May 19, 2009. In contrast,
the Special Representative of the UN Secretary General for Children and Armed
Conflict estimates that 48 percent of victims are children. "R. Coomaraswamy:
48% of the victims of sexual violence in the DRC are children," MONUC news
article, April 21, 2009, http://monuc.unmissions.org/Default.aspx?tabid=932&ctl=Details&mid=1096&ItemID=3602
(accessed May 11, 2009). Under international law, anyone under the age of 18 is
a child.

[6]
Nicola Dahrendorf, former MONUC Senior Advisor and Coordinator on Sexual
Violence, statement at a presentation to the "Conference on the Great Lakes
Pact – Two years on: Issues of Implementation and Enforcement," London School
of Economics, May 29, 2009, attended by Human Rights Watch researcher.

[7]
There are discrepancies in the number of reported cases. For example, according
to the medical sub-commission of the Commission provinciale de lutte contre les
violences sexuelles (CPVS), there were 10,644 cases of sexual violence
registered in South Kivu in 2008, while the official UNFPA figure for South Kivu is 2,883. CPVS Sud Kivu, "Data Presentation of the Medical Sub-Commission,"
(Présentation des données de la sous-commission médicale), February 2009 (on
file with Human Rights Watch); UNFPA, "Figures on sexual violence."

[8]
Figures are registered at the local level by service providers, collected at
the provincial level and channeled to a central point. Human Rights Watch telephone
interview with UNFPA representative, May 19, 2009; UNFPA, "Methodology," (Méthodologie),
undated (on file with Human Rights Watch).

[9]
Nicola Dahrendorf, former Senior Advisor and Coordinator on Sexual Violence at
MONUC, statement at a presentation to the "Conference on the Great Lakes Pact –
Two years on: Issues of Implementation and Enforcement," London School of
Economics, May 29, 2009, attended by Human Rights Watch researcher.

[10]
Helene Cooper, "Waiting for Their Moment in the Worst Place on Earth to Be a
Woman," New York Times, November 16, 2005, http://www.nytimes.com/2005/11/16/opinion/16wed4.html
(accessed May 29, 2009); "Conflict makes Congo 'worst place to be a child,'" Alertnet,
November 11, 2008, http://www.alertnet.org/thenews/newsdesk/LB607262.htm
(accessed May 28, 2009); "Congo 'worst place' to be woman or child," CTV.ca,
November 12, 2008, http://www.ctv.ca/servlet/ArticleNews/story/CTVNews/20081112/congo_refugees_081112?s_name=&no_ads=
(accessed May 16, 2009).

[12]Human
Rights Watch, The War Within The War: Sexual Violence Against Women and
Girls in Eastern Congo (New York: Human Rights Watch, 2002),
http://www.hrw.org/sites/default/files/reports/congo0602.pdf; Human Rights
Watch, Seeking Justice: The Prosecution of Sexual Violence in the Congo War,
vol.17, no.1(A), March 2005,
http://www.hrw.org/sites/default/files/reports/drc0305.pdf; Swedish Foundation
for Human Rights and All Parliamentary Group on the Great Lakes of Africa,
"Justice, Impunity, and Sexual Violence in Eastern Democratic Republic of
Congo," report of the International parliamentary-expert mission,November
2008, http://www.appggreatlakes.org/index.php/document-library-mainmenu-32/doc_view/119-sexual-violence-report?tmpl=component&format=raw
(accessed May 11, 2009).

[17]
See Geneva Convention for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field (First Geneva Convention), adopted August 12,
1949, 75 U.N.T.S. 31, entered into force October 21, 1950; Geneva Convention
for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members
of Armed Forces at Sea (Second Geneva Convention), adopted August 12, 1949, 75
U.N.T.S. 85, entered into force October 21, 1950; Geneva Convention relative to
the Treatment of Prisoners of War (Third Geneva Convention), adopted August 12,
1949, 75 U.N.T.S. 135, entered into force October 21, 1950; Geneva Convention
relative to the Protection of Civilian Persons in Time of War (Fourth Geneva
Convention), adopted August 12, 1949, 75 U.N.T.S. 287, entered into force
October 21, 1950; Protocol Additional to the Geneva Conventions of 12 August
1949, and Relating to the Protection of Victims of International Armed
Conflicts (Protocol I), adopted June 8, 1977, 1125 U.N.T.S. 3, entered into
force December 7, 1978; Protocol Additional to the Geneva Conventions of 12
August 1949, and Relating to the Protection of Victims of Non-International
Armed Conflicts (Protocol II), 1125 U.N.T.S. 609, entered into force December
7, 1978. Other sources of international humanitarian law are the 1907 Hague
Convention and Regulations, decisions of international tribunals, and customary
law.

[18]
Art. 3 common to the four Geneva Conventions of 1949. The Additional Protocol
II of 1977 to the Geneva Conventions in article 4(2)(e), to which Congo is a party, explicitly prohibits rape and "any form of indecent assault."

[19]
The obligation of states to prosecute grave breaches of international
humanitarian law is outlined in each of the Geneva Conventions. In particular,
see Convention (I) for the Amelioration of the Condition of the Wounded and
Sick in Armed Forces in the Field, art. 49; Convention (II) for the
Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed
Forces at Sea, art. 50; Convention (III) relative to the Treatment of Prisoners
of War, art. 129; Convention (IV) relative to the Protection of Civilian
Persons in Time of War, art. 146.

[21]Rome Statute of
the International Criminal Court (Rome Statute), U.N. Doc. A/CONF.183/9, July
17, 1998, entered into force July 1, 2002. The Rome Statute is the treaty
creating the ICC.

[22]
Rome Statute, art. 28. Customary international law results from a general and
consistent practice of states followed from a sense of legal obligation.
Although customary international law is unwritten, it is often reflected in the
terms of treaties, and in the writing of legal scholars and experts. The
principle of command responsibility is incorporated into many legal systems
worldwide.

[25]See UN
Human Rights Committee, General Comment 31, Nature of the General Legal
Obligation on States Parties to the Covenant, U.N. Doc. CCPR/C/21/Rev.1/Add.13
(2004) , para. 15. See also Updated Set of Principles for the Protection and
Promotion of Human Rights through Action to Combat Impunity ("Impunity
Principles"), U.N. Doc. E/CN.4/2005/102/Add.1, February 8, 2005, adopted by the
UN Commission on Human Rights in Resolution E/CN.4/2005/81, April 15, 2005,
principle I; Basic Principles and Guidelines on the Right to a Remedy and
Reparation for Victims of Gross Violations of International Human Rights Law
and Serious Violations of International Humanitarian Law ("Reparations
Principles"), adopted December 16, 2005, G.A. res. 60/147, U.N. Doc.
A/RES/60/147 (2005), principle 11.

[38]While
revealing of the scale of sexual violence by government forces, there are many
reasons why this statistic is likely to be incomplete. For example, victims of
sexual violence by armed groups in remote areas may have been less able to
access to services than those victims of rape by army soldiers.
UN Human Rights Council, Report of the Special Rapporteur on violence against
women, its causes and consequences, para. 13. The report contains a list of
FARDC sexual crimes. Ibid., paras. 19-24.

[39]
This was the majority of the 250 cases of sexual violence documented by Human
Rights Watch in North Kivu during that period. Human Rights Watch, "DR Congo:
Hold Army to Account for War Crimes."

[41]See the report by a Congolese human rights group, Justice Plus,"Ituri:
the Army Did Not Make a Difference,"(Ituri: L'Armée n'a
pas fait la différence), February 2007, (on file with Human Rights Watch).

[43] United Nations Security Council, Report of the Secretary-General on
children and armed conflict in the Democratic Republic of Congo, S/2007/391,
June 28, 2007, http://daccessdds.un.org/doc/UNDOC/GEN/N07/390/16/PDF/N0739016.pdf?OpenElement
(accessed May 30, 2009), paras 43, 47, 48.

[46]
A brigade is composed of several battalions with about 1,000 men, for a total
of about 3,500 men. These figures vary in practice. The 14th brigade
had at least 4,500 men and was composed of four battalions. Kinyarwanda is the
language of Rwanda but is also spoken by many Congolese Hutu and Tutsi people
in North Kivu.

[47]
Colonel Rugayi was suspended from this position from January to July 2008, as
is explained below. Colonel Rugayi is most often described as Hutu.

[52]
Human Rights Watch interview with member B (officer) of the 14th
brigade, Goma, April 8, 2009; Human Rights Watch interview with member of 10th
military region, Bukavu, April 2, 2009.

[53]
Human Rights Watch interview with General Mayala, Commander of the 8th
military region, Goma, March 30, 2009; Human Rights Watch interview with former
member A (senior officer) of the 14th brigade, Goma, March 30, 2009.

[54]
Human Rights Watch interview with Major Koth, Minova, March 29, 2009. There are
few military barracks in Congo, and some families follow the soldiers where
they go.

[55]
Human Rights Watch interview with Major Koth, Minova, March 29, 2009. Major
Koth has since left the 14th brigade and been promoted.

[58]
Human Rights Watch interview with member B (officer) of the 14th
brigade, Goma, April 8, 2009; Human Rights Watch interview with former member (senior
officer) of 10th military region, Goma, May 7, 2009.

[60]
Colonel Heshima led the rebellion against Colonel Tshibangu in Kabare and is
said to have ordered the execution of a soldier who refused to join him. Human
Rights Watch interview with member B (officer) of 14th brigade,
April 25, 2009.

[70]
Human Rights Watch interview with soldier C of the 14th brigade,
Minova, March 29, 2009. He did not refer specifically to the situation in
Kabare, but more generally to relations between 14th brigade
soldiers and minors.

[73]
Human Rights Watch, "DR Congo: Hold Army to Account for War Crimes."

[74]Human Rights Watch interview with 15-year-old victim, Minova,
May 9, 2009. The interviewee was unable to say with certainty which brigade the
soldiers belonged to, but it is likely that they were members of a brigade
mixing 14th brigade soldiers with former combatants, as those troops
were present in the area. The girl had been raped in 2008 by FARDC soldiers
too, and the baby boy had been born from the rape.

[84]
Human Rights Watch interview with Kabare resident, Bukavu, April 2, 2009; Human
Rights Watch interview with former member D (senior officer) of the 14th
brigade, Goma, May 7, 2009. The second interviewee wrongly dated the incident
to April 2008.

[86]
Human Rights Watch interview with General Mayala, Commander of the 8th
military region, Goma, March 30, 2009. A member of the 14th brigade
also said the same. Human Rights Watch interview with member B (officer) of
14th brigade, Goma, April 8, 2009.

[87]
Human Rights Watch interview with former member E (senior officer) of the 14th
brigade, Minova, March 28, 2009.

[88]
Human Rights Watch interview with First President of Military Court, South
Kivu, April 2, 2009.

[95]UN
Human Rights Council, Report of High Commissioner on the Situation of Human
Rights and the Activities of her Office in the Democratic Republic of Congo, advanced
unedited version, A/HRC/10/58, March 1, 2009, http://www2.ohchr.org/english/bodies/hrcouncil/10session/reports.htm
(accessed May 20, 2009), para. 52. More details on this can be found in the
section on military justice.

[101]
The last report is from November 2008 and recommends a "comprehensive national
strategy" to prevent, respond to and combat sexual violence. Report of the
Secretary-General on children and armed conflict in the Democratic Republic of the Congo, November 10, 2008, S/2008/693, para. 106, http://daccessdds.un.org/doc/UNDOC/GEN/N08/595/42/PDF/N0859542.pdf?OpenElement
(accessed June 24, 2008).

[102]
Statement by the President of the Security Council, S/PRST/2009/9, April 29,
2009.

[105] United Nations Security Council, Letter dated February 9, 2005 from
the Secretary-General addressed to the President of the Security Council,
S/2005/79, http://daccessdds.un.org/doc/UNDOC/GEN/N05/233/27/PDF/N0523327.pdf?OpenElement
(accessed June 2, 2009).

[110]
These include including the United Nations Development Program (UNDP), the
United Nations High Commission for Refugees (UNHCR), and the International
Organization for Migration (IOM). MONUC, "Security Sector Reform – the SSR Coordination
Office of MONUC," (Security Secteur Reform-Le Bureau de Coordination SSR de la
MONUC), http://monuc.unmissions.org/Default.aspx?tabid=1685 (accessed May 13,
2009).

[117] "DR Congo: UN Ends Military and Ethics Training for Two Army
Batallions," (RD Congo: L'ONU achève la formation militaire et éthique de deux
bataillons de l'armée), United Nations press release,
August 14, 2008, http://www.un.org/apps/newsFr/storyF.asp?NewsID=17071&Cr=RD%20Congo&Cr1=MONUC
(accessed May 12, 2009); Human Rights Watch interview with UN official, Goma,
March 30, 2009. UNHCR is doing this work in its role as head of the
protection cluster.

[118]
Human Rights Watch telephone interview with ICRC representative, May 19, 2009;
Human Rights Watch telephone interview with UN official, May 19, 2009. Even in
early 2009, when the government was keen to use newly integrated forces as
quickly as possible in its combat against the FDLR, UNHCR and ICRC managed to
do some training with the newly integrated brigades. However, there was no
centrally organized training, Human Rights Watch telephone interview with ICRC
representative, May 19, 2009; Human Rights Watch email correspondence with UN
official, May 5, 2009.

[130]
Human Rights Watch interview with EUSEC representatives, Goma, March 30, 2009;
Human Rights Watch telephone interview with EUSEC staff, May 2009. The 2009
integration of further armed groups has increased the number of soldiers and
resulted in delayed payments.

[131]
Even the government itself admits these problems in the "Army Reform Plan,"
(Plan de la réforme de l'Armée).

[140]REJUSCO, "DRC: Support Program for
Justice Restoration in Eastern DRC,"(RDC : Programme d'appui à la
restauration de la Justice à l'Est de la RDC), information sheet, undated, http://www.btcctb.org/doc/UPL_200903250921327612.pdf
(accessed May 5, 2009). The
€15 million are designated for a three-year period, 2007-2009; this sum
contains bilateral support from the UK, the Netherlands, and Belgium.

[145]
The case is described in detail in Human Rights Watch, Seeking Justice,
pp. 32-35.

[146]
Undated statistics from the CPVS, legal subgroup, South Kivu. During 2008,
agencies working in South Kivu registered a total of 673 new cases of sexual
violence before civilian and military courts. Civilian courts adjudicated 101
cases, with 71 defendants being convicted. Undated statistics from the CPVS,
legal subgroup, South Kivu (on file with Human Rights Watch).

[147]
Undated statistics from Auditorat de garnison, Goma (on file with Human
Rights Watch). Congo has the following military courts: Tribunal militaire
de police (Police Military Tribunal) for minor crimes; Tribunal
militaire de garnison (Garrison Military Tribunal) for soldiers and police
below the rank of major; Cour militaire (Military Court) for
higher-ranking officers; and Haute cour militaire (High Military Court)
for generals. Higher courts function as appeal courts for lower courts. In
addition, there is a cour militaire opérationelle (Operational Military
Court)for crimes committed in combat zones.

[148] REJUSCO, "Note on the Continuation of the Mobile Hearing of the Goma Tribunal
militaire de garnison in Walikale," (Note sur le suivi de l'audience
foraine du tribunal militaire de garnison de Goma à Walikale),April 2009,
http://www.rejusco.org/pages/Audience%20foraine.htm (accessed May 6, 2009). Several
soldiers were convicted in absentia.

[151]ASF,
"Jurisprudence Study: The application of the Rome Statute of the
International Criminal Court by jurisdictions in the Democratic Republic of Congo,"
("Etude de jurisprudence. L'application du statut de Rome de la Cour pénale
internationale par les jurisdictions de la République Démocratique du Congo"),
March 2009, http://www.asf.be/publications/ASF_EtudeJurispr_StatutRome_FR.pdf
(accessed June 28, 2009) p. 44-46.The case also exposed the challenges of
trying such crimes and ending impunity for crimes of sexual violence. Shortly
after their conviction, the seven convicted soldiers escaped from prison and
remain at large today. See below.

[155] REJUSCO, "Note on the Continuation of the Mobile Hearing of the Goma Tribunal
militaire de garnison in Walikale," (Note sur le suivi de l'audience
foraine du tribunal militaire de garnison de Goma à Walikale), April 2009,
http://www.rejusco.org/pages/Audience%20foraine.htm.

[156]
The Colonel in South Kivu is accused of having ordered his escorts to sexually
assault a woman. The Colonel in North Kivu, a former CNDP combatant, is accused
of having ordered the rape of four girls. Human Rights Watch telephone
interview with Congolese lawyer, May 7, 2009.

[160]UN General Assembly, "Report of the Special Rapporteur on the
independence of judges and lawyers: Addendum – Preliminary note on the
mission to the Democratic Republic of Congo," A/HRC/4/25/Add.3, May 24, 2007, http://www2.ohchr.org/english/bodies/hrcouncil/docs/4session/A.HRC.4.25.Add.3.pdf
(accessed June 4, 2009).

[162]
Many of these problems also affect the civilian courts. For an overview, see Swedish
Foundation for Human Rights and All Parliamentary Group on the Great Lakes of
Africa, "Justice, Impunity, and Sexual Violence in Eastern Democratic Republic
of Congo."

[169]
Human Rights Watch interview with military prosecutor, Goma, March 30, 2009;
Human Rights Watch interview with staff of military prosecutor's office, Goma,
May 11, 2009; Human Rights Watch/Arche d'alliance interview with convicted
soldier G of the 14th brigade, Bukavu prison, April 3, 2009; Human
Rights Watch telephone interview with First President of Military Court, South
Kivu, June 11, 2009. Since there is no official case tracking system, there
could have been other prosecutions that we did not learn of.

[170]
Human Rights Watch interview with victim, Minova, March 28, 2009. The victim
got pregnant from the rape. The date of the rape was corroborated by the age of
the baby. According to a local NGO, the soldiers were part of a group that had
stayed behind when most of the 14th brigade had left the area, and
might have been considered deserters by the 14th brigade command.

[177]
Human Rights Watch received information on 13 cases of ill-treatment and
torture by the 14th brigade in late 2008 in Minova, and one case of
an execution of a soldier detained at the 14th brigade headquarters
in January 2009 in Minova. Human Rights Watch interviews with human rights
activists in Minova and Bukavu, March 29 and April 1, 2009; Human Rights Watch
interview with member of 14th brigade, Goma, April 25, 2009.

[183]
Human Rights Watch/Arche d'alliance interview with convicted soldiers G and H
of the 14th brigade, Bukavu prison, April 3, 2009. One of the
soldiers had been recruited as a child by the RCD-Goma. For violations of due
process, see also Human Rights Watch, Seeking Justice.

[185]
ICJP interview with military prosecutor, Bukavu, April 24, 2009. The First
President of Military Court made similar statements to Human Rights Watch.
Human Rights Watch interview with the First President of Military Court, South
Kivu, April 2, 2009.

[188]
Indeed, the presence of international staff in the Bosnian war crimes chamber
has been cited as an important factor in helping to insulate the judiciary from
political interference and preserve public confidence in the institution. See
David Tolbert and Aleksandar Kontic, Report of the International Criminal
Law Services (ICLS) Experts on the Sustainable Transition of the Registry and
International Donor Support to the Court of Bosnia and Herzegovina in 2009,
December 15, 2008, para. 72 (on file with Human Rights Watch).

[189]
The ICC is also conducting proceedings against Jean-Pierre Bemba, the leader of
the opposition in Congo, who has been arrested and charged with war crimes and
crimes against humanity, including rape. However, Bemba has been charged in his
capacity as a rebel leader in relation to the ICC's investigation in the Central African Republic.